CCR Symposium — Speech and (In)equality

Professor Citron’s Cyber Civil Rights makes several important contributions to our understanding of the relationship between speech and equality. By comprehensively documenting the use of cyberharassment to target traditionally subordinated groups so that members of such groups pay a higher price for their internet presence, she powerfully challenges the traditional narrative of the internet as a primarily egalitarian institution. She thoughtfully describes how the internet’s great communicative strengths — e.g., its ability to aggregate large numbers of speakers as well as disaggregate speakers’ offline identities from their online voices — also magnify its capacity to empower certain socially destructive behaviors. And, like both Charles Lawrence and Catharine MacKinnon in other contexts, she demonstrates how cyberharassment not only undermines equality values but also frustrates free expression by silencing certain voices.

After demonstrating the harms of cyberharassment, she then persuasively explains why the regulation of threatening or defamatory cyberspeech should pose no greater First Amendment hurdles than the regulation of threatening or defamatory speech in other settings. But, of course, those First Amendment hurdles are far from insignificant. For example, while the article suggests that much of cyberharassment fits on the “conduct” end of the “speech/conduct” divide, I’m among those who remain skeptical that such a divide is a terribly productive way to solve First Amendment problems. Rather than attempting to understand cyberharassment as conduct unprotected by the First Amendment, I would instead characterize it (along with threats, defamation, and other forms of harassment) as speech that nonetheless may be regulated when it poses substantial harms without significantly furthering traditional First Amendment values.

The article succeeds tremendously in its effort to “begin the conversation” about a cyber civil rights agenda. Like so many others, I’m very interested in what’s next. While the paper has convinced me that cyberharassment inflicts significant civil rights injuries, I don’t share its optimism that traditional civil rights statutes — such as Title VII or 42 U.S.C. section 1981 — are particularly well-suited to capture and address those harms. I was, however, fascinated by the paper’s discussion of the Violence Against Women Act’s prohibition on the use of telecommunications devices to deliver certain anonymous threats or harassment. Maybe that provision can provide a helpful model for ensuring that pending legislation (like the Matthew Shepard Act) remains attentive to the various forms that civil rights injuries can take in the 21st Century.